Bexton Australia Pty Ltd v Kuredale Pty Ltd - [2000] WADC 263

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BEXTON AUSTRALIA PTY LTD -v- KUREDALE PTY LTD [2000] WADC 263

CORAM: YEATS DCJ

HEARD: 11 OCTOBER 2000

DELIVERED : 24 OCTOBER 2000

FILE NO/S: CIV 1539 of 1999
Consolidated with CIV 1977 of 1999

BETWEEN: BEXTON AUSTRALIA PTY LTD (ACN 056 516 075)
Plaintiff
AND
KUREDALE PTY LTD (ACN 064 308 890)
Defendant

Catchwords:

Costs - Plaintiff filed and served six statements of claim - Application for indemnity costs order - Whether failure to comply with case management directions amount to abuse of process - No indemnity costs order made in the circumstances - Application for costs to be paid forthwith - Defendant required to incur costs over and above those it would have incurred had the plaintiff acted diligently - Defendant not expected to bear such costs until proceedings are finalised - Order that costs be paid forthwith

Legislation:

Supreme Court Rules

Federal Court Rules

Result:

Plaintiff to pay the defendants cost of the application in any event with such costs to be taxed and paid to the defendant forthwith

Representation:

Counsel:

Plaintiff: Mr C Edmonds
Defendant: Mr G Rabe

Solicitors:

Plaintiff: Jackson McDonald
Defendant: Ahern & Associates

Case(s) referred to in judgment(s):

Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
Colgate-Palmolive Pty Ltd v Cussons (1993) 46 FCR 225
Harris v Cigna Insurance Australia Ltd (1995) 17 ATPR 41-445
Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd, unreported; Fed Ct (NSW); 22 May 1998
Thunderdome Race Timing & Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297
Unioil International Pty Ltd & Ors v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190

Case(s) also cited:

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Rouse v Shephard [No 2] (9914) 35 NSWLR 277

YEATS DCJ: On 11 October 2000 the defendant’s appeal from the decision of Deputy Registrar Hewitt delivered on 22 July 2000 came on for hearing before me. On that day I made orders allowing the appeal, dismissing the plaintiff’s application for leave to amend its statement of claim and several programming orders. The defendant sought an order that the plaintiff pay the defendant’s costs of the application on an indemnity basis with such costs to be taxed and paid to the defendant forthwith. I reserved my decision on that issue and now publish my reasons.

History

The plaintiff’s claim has had a long and troubled history in the District Court. The writ issued on 19 April 1999; the plaintiff was late with its statement of claim which was filed out of time on 14 July 1999. Some time thereafter the plaintiff was granted leave to consolidate two actions and on 3 December 1999 filed and served a consolidated statement of claim.
The defendant successfully moved to strike out that consolidated statement of claim. At…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] WADC 263
Decision Date

CaseChat Overview and Summary

In the District Court of Western Australia, Bexton Australia Pty Ltd pursued a claim against Kuredale Pty Ltd. The dispute originated from the consolidation of two actions, involving multiple iterations of statements of claim, each subsequently amended or struck out. The defendant contested the plaintiff's persistent failure to comply with case management directions and sought indemnity costs, arguing this constituted an abuse of process. The plaintiff maintained that their multiple attempts to perfect the pleadings demonstrated good faith and diligence.

The court examined whether the plaintiff's conduct warranted an indemnity costs order, considering the principles governing such orders. While the plaintiff's repeated amendments were noted, the court found that the plaintiff had acted in good faith despite the difficulties in formulating the claim. However, the plaintiff's disregard for case management principles, resulting in substantial waste of court time, was considered an abuse of process. Although the plaintiff's conduct was not deemed wilful or egregious enough to justify indemnity costs, the court found that the defendant had incurred costs unnecessarily due to the plaintiff's repeated amendments. Consequently, the court ordered that the plaintiff pay the defendant's costs of the application forthwith.

The final order required the plaintiff to pay the defendant’s costs of the application immediately, to be taxed and paid forthwith, reflecting the special circumstances of the case.

Orders